Supreme Court’s Liberals Blast Trump Birthright Citizenship Plan

President Donald Trump’s executive order restricting the longstanding concept of birthright citizenship is probably illegal, the US Supreme Court’s liberal justices indicated during the first oral arguments in any of the numerous lawsuits challenging the Republican’s agenda.

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson on Thursday peppered a government lawyer with questions about the constitutionality of Trump’s order. At the hearing, the Trump administration is asking the court to let the order take effect in some parts of the country while multiple lawsuits proceed.

The order is currently being blocked across the country by three nationwide injunctions issued by district court judges. The government seeks to limit those rulings to only the seven pregnant women who sued, along with 11 identified members of two advocacy groups that are also involved.

Demonstrators outside the US Supreme Court during oral arguments in Washington on May 15.

Photographer: Kent Nishimura/Bloomberg

Much of the sharp questioning — which was also joined by conservative Justices Amy Coney Barrett and Brett Kavanaugh — asked the government to assume for the moment that the executive order was illegal, in order to address the crucial question of whether nationwide injunctions are proper. But the liberal justices hinted at their broader views about the legality of the order itself.

“As far as I see it, this order violates four Supreme Court precedents,” Sotomayor said to the Trump administration’s top attorney, Solicitor General D. John Sauer.

Sauer argued that the use of nationwide injunctions “is a bipartisan problem that has now spanned the last five presidential administrations.” Among the problems they create, he said they prevent “percolation of novel and difficult legal questions,” encourage so-called forum shopping and require judges to “make rushed, high stakes, low information decisions.”

Read More: Trump Pushes Supreme Court to Undercut the Judges Who Thwart Him

Sauer said that there are currently 40 nationwide injunctions in place blocking some of Trump’s initiatives, many of which test the limits of presidential power under the US Constitution.

Justices from both sides of the ideological spectrum grilled Sauer about the lawyer’s view on nationwide injunctions in the birthright citizenship case, given that potentially thousands of individual lawsuits would need to be filed seeking the same relief without them.

The Supreme Court may eventually hear arguments on the legality of Trump’s executive order itself, which seeks to restrict birthright citizenship so that babies born in the US can’t become citizens unless at least one parent is a citizen or permanent resident. The right is protected in the 14th Amendment, adopted in 1868, which states “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The president’s order holds that the children of undocumented immigrants aren’t “subject to the jurisdiction” of the US and therefore aren’t covered by the 14th Amendment. Courts have widely interpreted the clause to mean that being born on US soil, even to undocumented immigrants, guarantees American citizenship to the child.

Explainer: Can Trump Really End Birthright Citizenship?

Trump said Thursday on his Truth Social platform that the 14th Amendment’s citizenship clause wasn’t intended to apply to undocumented immigrants. He said it was about “Civil War results, and the babies of slaves who our politicians felt, correctly, needed protection.”

To contact the reporter on this story:
Erik Larson in New York at elarson4@bloomberg.net

To contact the editors responsible for this story:
Misyrlena Egkolfopoulou at megkolfopoul@bloomberg.net

Elizabeth Wasserman, Peter Jeffrey

© 2025 Bloomberg L.P. All rights reserved. Used with permission.